Saturday, February 09, 2013

How family court denies free speech

UCLA law professor Eugene Volokh wrote a law review article a couple of years ago detailing how family courts infringe free speech rights:

Likewise, through the past decades, parents have had their rights limited or denied based partly on their racist speech, advocacy of Communism, Nazi sympathies, advocacy of pacifism and disrespect for the flag, advocacy of polygamy, defense of the propriety of homosexuality, defense of adultery, advocacy of (or inadequate condemnation of) nonmarital sex, teaching of fundamentalism, teaching of "non-mainstream" religions, teaching of religious intolerance, and attendance with their children at churches that recognize same-sex marriage. The Pennsylvania Supreme Court is now reviewing the polygamy advocacy case, framing the question as, "To what extent can the courts limit parents from advocating religious beliefs that, if acted upon, would constitute criminal conduct?" -- a question that could equally apply to parents' teaching their children the propriety of refusing to fight in unjust wars, the propriety of civil disobedience, and the like.

All this is done under the rubric of the "best interests of the child" standard, the normal rule applied in custody disputes between two parents, and this standard leaves family court judges ample room to consider a parent's ideology. For instance, in a country where half the public thinks that it's necessary "to believe in God in order to be moral and have good values," has an unfavorable view of "[a]theists, that is, people who don't believe in God," and wouldn't vote for a political candidate who didn't believe in God even if he had been nominated by their own party, it makes sense that some judges would think that it's against the child's best interests for a parent to raise the child without religion.

Courts have also ordered parents to reveal their homosexuality to their children, or to conceal it. They have ordered parents not to swear in front of their children, and to install Internet filters. They have also considered, as a factor in the custody decision, parents' swearing; exposing their children to R-rated movies, a gun-themed magazine, unfiltered Internet access, photos of men in women's clothing, music with vulgar sexual content, and pornography; and viewing pornography and keeping it in a place where the children might access it. Likewise, Texas law leaves custody decisions to juries, and lets jurors consider a parent's religious "beliefs, teachings, or practices" as part of the best interests inquiry, if the jurors conclude that those "beliefs, teachings, or practices [are] illegal, immoral, or . . . harmful to the child[]." "[W]hat is immoral or harmful" is to be "left to the jury to apply community standards," and may include "gambling, playing a lottery, drinking to excess, homosexual conduct, or abortion." Constitutionally protected speech, if seen as an "illegal, immoral, or ... harmful" "belief[]" or "teaching[]," could therefore also be considered, just as constitutionally protected abortions might be. Many judges and juries are doubtless reluctant to use the best interests standard this way, especially where religious or political teaching is involved. But others may be quite willing.